Sherman v. Commissioner of Social Security

Filing 21

Order The Commissioners objections to the Report and Recommendation of the United States Magistrate Judge be, and the same hereby are, overruled. The Report and Recommendation of the United States Magistrate Judge be, and the samehereby is adopted, and the final decision of the Commissioner is affirmed. Judge James G. Carr on 7/19/12. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Eric J. Sherman,

Case No. 3:11-CV-01722
Plaintiff

v.

ORDER

Commissioner of Social Security,
Defendant

In this appeal, I review defendant Commissioner of Social Security’s (Commissioner) final
decision denying plaintiff Eric J. Sherman’s claims for disability insurance benefits (DIB) under
Title II of the Social Security Act (SSA), 42 U.S.C. §§ 416(i) and 423.
Jurisdiction is proper under 28 U.S.C. § 1331 and 42 U.S.C. § 405(g).
Plaintiff objects [Doc. 19] to the Magistrate Judge’s Report and Recommendation
(Magistrate’s Report) [Doc. 18], which recommends affirming the administrative law judge’s (ALJ)
decision. Based on a de novo review of the record, I overrule plaintiff’s objections.
Background

On September 10, 2007, Sherman filed an application for Disability Insurance Benefits
(DIB), alleging a disability onset date of July 1, 20051 due to lower back problems. His application
was denied initially and upon reconsideration. Sherman timely requested an administrative hearing.
On May 20, 2010, an Administrative Law Judge held a hearing during which Sherman,
represented by counsel, appeared and testified. Medical Expert Dr. Paul Gatens, M.D., and
Vocational Expert Dr. Richard Astrike, Ph.D., also testified. On October 27, 2010, a supplemental
hearing was held with plaintiff again testifying; Vocational Expert Carl Hartung also testified.
On January 3, 2011, the ALJ found that Sherman was able to perform a significant number
of jobs in the national economy, and was therefore not disabled. The Appeals Council denied further
review, making the ALJ’s decision the final decision of the SSA.
Sherman then filed an appeal to this court. Magistrate Judge Vernelis K. Armstrong issued
a Report and Recommendation that the Commissioner’s decision be upheld.
Standard for Disability
The standard for disability under both the DIB and SSI programs is substantially similar. 20
C.F.R. § 404.1520 and 20 C.F.R. § 416.920. To determine disability, the ALJ engages in a
sequential, five-step evaluative process. The ALJ considers whether: 1) the claimant is engaged in
work that constitutes substantial gainful activity; 2) the claimant is severely impaired; 3) the
claimant's impairment meets or equals the Secretary's Listing of Impairments, 20 C.F.R. Part 404,
Subpart P, App. 1; 4) claimant can perform past relevant work; and 5) other jobs exist in significant
numbers to accommodate claimant if claimant cannot perform his past relevant work, given his
residual functional capacity (RFC), age, education and past work experience. 20 C.F.R. § 404.1520.

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Sherman initially alleged a disability onset date of August 6, 2003, but later amended it at
the initial hearing before the Social Security Administration.

The claimant bears the burden of proof at steps one through four, after which the burden shifts to
the Commissioner at step five. Id. at § 404.1520(a)(4).
ALJ Findings
In his decision on January 23, 2011, the ALJ made the following findings:
1. The claimant last met the insured status requirements of the Social
Security Act on March 31, 2009.
2. The claimant did not engage in substantial gainful activity during the
period from his alleged onset date of July 1, 2005 through his date last
insured of March 31, 2009 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe
impairments: cervical disk disease and cervical degenerative joint disease
status post cervical diskectomy and fusion at C5-C7 surgery in November
2008; lumbar disk disease and lumbar degenerative joint disease status post
lumbar fusion surgery in July 2005; alcohol abuse and depression (20 CFR
404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. Through the date last insured, the claimant had the residual functional
capacity to perform less than the full-range of sedentary work as defined in
20 CFR 404.1567(a) with the following abilities and limitations: (1) able to
lift and carry 20 pounds occasionally and 10 pounds frequently; (2) able to
sit 1 hour at a time for a total of 6 hours in an 8-hour workday; (3) able to
stand and/or walk for 30-45 minutes at a time for a total of 5 hours in an 8hour workday; (4) precluded from climbing or high work; (5) able to
occasionally crawl, stoop, kneel, and crouch; (6) precluded from driving in
the work place and working around hazardous moving machinery; (7) limited
to receiving verbal instructions only; (8) limited to work involving simple
instruction and simple tasks.
6. Through the date last insured, the claimant was unable to perform any past
relevant work (20 CFR 404.1565).
7. The claimant was born on August 17, 1975 and was 33 years old, which
is defined as a younger individual age 18-44, on the date last insured (20
CFR 404.1563).

8. The claimant has a marginal education and is able to communicate in
English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant’s age, education,
work experience, and residual functional capacity, there were jobs that
existed in significant numbers in the national economy that the claimant
could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security
Act, at any time from July 1, 2005, the amended alleged onset date, through
March 31, 2009, the date last insured.
The Magistrate recommends affirming the decision of the Commissioner.
Standard of Review
When reviewing the Magistrate's Report, I make a de novo determination regarding the
portions to which the Commissioner objects. See 28 U.S.C. § 636(b)(1).
In reviewing the Commissioner's decision, I must determine whether substantial evidence
supports the ALJ's findings, and whether the ALJ applied the proper legal standards. 42 U.S.C. §
405(g); Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). I “may not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.” Cutlip v. Sec'y of Health & Human
Servs., 25 F.3d 284, 286 (6th Cir. 1994). If substantial evidence supports it, I must affirm the ALJ's
decision, even if I would have decided the matter differently. 42 U.S.C. § 405(g); Kinsella v.
Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986) (en banc).

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Substantial evidence is “more than a scintilla of evidence but less than a preponderance and
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Brainard, supra, 889 F.2d at 681 (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
In determining whether substantial evidence supports the ALJ's findings, I view the record as a
whole, Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980), and consider anything in the record
suggesting otherwise. See Beavers v. Sec'y of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.
1978).
Discussion
The Magistrate Judge recommends I affirm the Commissioner’s decisions, as it was
supported by substantial evidence. Sherman objects to this recommendation, arguing that the
Magistrate erred in assessing the opinion of Dr. Stephanie A. Matuszak, a treating physician.
Dr. Matuszak treated Sherman starting in 2003 through much of 2006, particularly following
Sherman’s July 2005 back surgery. Magistrate Armstrong summarized Dr. Matuszak’s opinions as
follows:
[H]er examinations consistently found reduced range of motion in [Sherman’s]
lumbar spine, tenderness and spasm; and a subsequent MRI of [Sherman’s] lumbar
spine was noted to have epidural fibrosis and scarring. Dr. Matuszak opined that
Plaintiff suffered from a failed back syndrome. On November 16, 2006, Dr.
Matuszak reported that Plaintiff was released to work with restrictions and she
further opined that Plaintiff could not lift or carry anything over five pounds, he must
be allowed to change positions as needed and would be limited to twenty-one hours
per week.
(Doc. 18 at 24) (internal record citations omitted).

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The treating physician rule requires the ALJ “to ‘give good reasons’ for not giving weight
to a treating physician in the context of a disability determination.” Wilson v. Comm’r of Soc. Sec.,
378 F3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. § 404.1527(d)(2)).
An ALJ must give the opinion of a treating source controlling weight if he finds the
opinion “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and “not inconsistent with the other substantial evidence in [the] case
record.” If the opinion of a treating source is not accorded controlling weight, an ALJ
must apply certain factors-namely, the length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a whole,
and the specialization of the treating source-in determining what weight to give the
opinion.
Id. (quoting 20 C.F.R. § 404.1527(d)(2)).
Sherman argues that the ALJ has not fulfilled these procedural requirements, noting that the
ALJ did not once refer to Dr. Matuszak by her name, or specifically cite to the length, nature, and
extent of the treating relationship. While this is true, as the Magistrate pointed out, this fact is not
wholly dispositive of whether the ALJ gave sufficient reasons on the record for rejecting the treating
physician’s opinion.
The Sixth Circuit has stated that where an ALJ does not strictly comply with the procedural
requirements contained in 20 C.F.R. § 404.1527(d)(2), such an error can be excused “where the
decision has met the goal of § 1527(d)(2).” Francis v. Comm’r of Soc. Sec. Admin., 414 Fed. App’x
802, 805 (6th Cir. 2011) (unpublished disposition) (quoting Wilson, supra, 378 F.3d at 547). The
goals of giving “good reasons” are two-fold: first, “to let claimants understand the disposition of
their cases”; and second, to “ensure[] that the ALJ applies the treating physician rule and permits
meaningful review of the ALJ’s application of the rule.” Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 407 (6th Cir. 2009) (quoting Wilson, supra, 378 F.3d at 544).

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I agree with the Magistrate’s determination that the ALJ’s discussion of the treating
physicians’ opinions is sufficient to meet these goals. The ALJ credited Dr. Matuszak’s opinions
when he acknowledged that “the claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms,” specifically referencing Dr. Matuszak’s examinations
after Sherman underwent lumbar fusion surgery in 2005, where Dr. Matuszak made “findings that
the claimant has decreased range of motion and tenderness to palpitation in his neck and back,
positive straight leg raising tests, and a stiff gait.” [Doc. 12 at 18].
The ALJ then went on to further credit Dr. Matuszak’s observations of Sherman’s
improvement, noting that Sherman’s objective examinations were progressing along with his ability
to handle certain types of work. [Id.] The ALJ’s only point of differentiation between the ALJ’s final
RFC findings and Dr. Matuszak’s conclusions were the amount of weight Sherman could handle
lifting and carrying. This difference is more than explained by the ALJ’s extensive review and
recitation of findings in the record from both objective and subjective medical evidence.
This is not a situation “where [the] claimant knows that his physician has deemed him
disabled and therefore ‘might be especially bewildered when told by an administrative bureaucracy
that she is not[.]’” Wilson, supra, 178 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.
1999)). The ALJ reviewed Dr. Matuszak’s opinions and met the goals of § 1527(d)(2) by making
sufficient reference to the other medical evidence in the record in explaining why he granted “little
weight” to the treating physicians’ opinions. I agree with the Magistrate’s determination that this
is so.
Accordingly, for the foregoing reasons, it is hereby:
ORDERED THAT:
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1. The Commissioner’s objections to the Report and Recommendation of the United States
Magistrate Judge be, and the same hereby are, overruled; and
2. The Report and Recommendation of the United States Magistrate Judge be, and the same
hereby is adopted, and the final decision of the Commissioner is affirmed.
So ordered.

/s/James G. Carr
James G. Carr
Sr. United States District Judge

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